CHATHUKUTTY Vs. S I OF POLICE

JUDGEMENT

(1.) THESE cases have been referred to Division Bench doubting the correctness of the decision of a learned single judge of this court in Murali v. State of Kerala (1987 (1) KLT 69 ).

(2.) THE facts in Crl. MC No. 607 of 1986 can be summarised as follows: S. I. of Police, Kuthuparamba filed what is known as 'petty case charge sheet' before the Judicial Second Class Magistrate, Kuthuparamba on 23-7-1983 alleging that on the previous eight at 8 p. m. Head Constable of police attached to the police station found the petitioner on the public road in Kuthuparamba bazaar in a state of drunkenness and incapable of taking care of himself, behaving in an it decent and disorderly manner under the influence of alcohol and causing inconvenience to the public and that the petitioner committed an offence under S. 51 (a) of the Kerala Police Act. THE petitioner had been subjected to medical examination and medical certificate showed that he had consumed alcohol and was under the influence of alcohol. When the report was submitted to the learned Magistrate, petitioner was present. THE Magistrate in his order stated that: "the accused entered appearance today itself and he was questioned under S. 251 Cr. PC. He pleaded guilty to the offence under S. 51 of the KP Act. To ascertain whether the confession was made voluntarily, after understanding its full implications, the facts of the case were once again explained to him and his attention was drawn to the penalty that would be awardable. In spite of this he was adamant in confessing his guilt. He was also asked whether he was forced to confess owing to some external pressure. An emphatic 'no' was the reply. THE accused is some what educated. He was very cool when he made the confession. I hold that the confession was made voluntarily. " Learned Magistrate alia stated that he gave an opportunity to the petitioner to state any extenuating circumstances. But the petitioner said nothing. He is a peon in a U. P. school. Learned Magistrate convicted and sentenced him to undergo S. I. for one month and to pay a fine of rs. 200/ and in default to undergo S. I. for a further period of one week. THE conviction and sentence were confirmed by the Assistant Sessions Judge, tellicherry who found that the plea of guilty was voluntary. Revision before the Court of Session was also dismissed. He has therefore filed Crl. MC No. 607 of 1986 under S. 482 of the Code.

(3.) THE charge in Murali's case (1987 (1) KLT 69) was under S. 51 (A) of the Kerala Police Act. THE offence was committed on the night of 18-3-1983. It appears the accused were produced in court with the report of the S. I. of Police on 19-3-1983. THE court numbered the case as Summary Trial case and since the accused were present in court, the court proceeded to explain the substance of accusation to the accused, recorded and accepted the plea of guilty and convicted and sentenced them. It was argued before the learned single judge that the proceeding was illegal inasmuch as the court did not issue summons for appearance of the accused. Learned Judge referred to s. 204 (1) (a) and S. 251 of the Code and observed: "when S. 251 of the Code speaks of the appearance of the accused, or his being brought before a Magistrate, the legislature intended that the appearance of the accused should be in answer to the issue of a summons, and bringing of the accused should be in pursuance of a warrant issued by the Magistrate as contemplated in S. 204 of the Code. If the Magistrate has not applied his mind and decided to proceed with the case he cannot issue a summons or warrant. His decision to proceed need not be by writing a formal order. If the Magistrate orders for the issue of summons or warrant it gives rise to an inference that he has decided to proceed. THE corollary is that, if a Magistrate does not issue summons or warrant to an accused, the Magistrate cannot state the particulars of any offence to an accused, who happens to be present before him, and ask him whether he pleads guilty or not. If the accused is present in court after the issue of summons, though the summons has not been served on him, the Magistrate can presume that the accused is in the know of the issue of summons (or warrant as the case may be) and in that case it is open to the Magistrate to proceed further. But before be states the particulars of the offence to the accused, be has to comply with one more formality". (emphasis supplied) THE learned judge also relied on the decisions in rajkumar Chauhan v. THE State (AIR 1967 Tripura 13) and State v. Raghuram (AIR 1964 Calcutta 64 ). In Rajkumar Chauhan's case (AIR 1967 Tripura 13) issue; of summons was ordered, but summons was not issued and the case was taken up a few days earlier than the day fixed for the appearance of the accused. THE accused were actually present. THE court indicated that it was necessary to give notice to the accused to enable the accused to come prepared in his mind to plead guilty or defend himself and explaining the accusation as contemplated in S. 251 of the Code is not a complete substitute for issue of summons. In Raghuram's case (AIR 1964 Calcutta 64) summons was ordered, but not served. THE court proceeded with trial since accused were present. Accused pleaded guilty and that was acted upon. THE learned judge of the Calcutta High Court indicated that even if accused was present, since summons had not been issued so as to give notice to the accused as to what charge he was called upon to answer, s. 242 of the Code (251 of the 1973 Code) cannot be taken to be complied with. It is interesting to notice that learned counsel for the petitioner in Crl. MC 607/86 and the revision petitioner in Crl. RP No. 374/87 (for the sake of convenience the parties will be referred to as accused in this judgment) while supporting the decision in Murali's case (1987 (1) KLT 69) to the extent it holds that without ordering issue of summons, court cannot proceed, contend that the view taken by the learned single judge that summons need not actually be served and it would be sufficient if the accused appears after summons was ordered to be issued is not sustainable. Learned Prosecutor would contend that the entire view taken by the learned single judge in Murali's case (1987 (1)KLT 69) requires reconsideration. Learned Prosecutor has referred to the decisions in Emperor v. Mst. Rurt (AIR 1919 Lahore 389), Gopal Marwarl And others v. Emperor (AIR 1943 Patna 245), In Re Mikkinnini Maruthi (AIR 1968 AP 125), and Mahendra Prasad Sharma and Others v. State of Bihar (1977 Crl. LJ 1025 (Patna High Court ).